February 23, 2009

City Settles Noise Ordinance Suit With Evangelist

An apparent breakdown in communication among city officials may have led Ithaca police officers to enforce the city’s noise ordinance against an evangelical preacher last August in a way that had previously been deemed unconstitutional by a federal appeals court.
The “misunderstanding” will now cost the city $10,000 as part of a settlement it reached on Feb. 12 with Syracuse resident James Deferio, who sued the city last November, claiming that the city violated his First Amendment right to free speech.
Deferio alleged that while he was preaching on the Ithaca Commons last August, an Ithaca Police officer approached him and “explained that Deferio would have to lower his voice or stop speaking, because his voice could be heard 25 feet away,” in violation of the City’s noise ordinance.
The Ithaca police officers’ reliance on a “25-foot rule” for restricting unamplified sound, which is not written in the City’s noise ordinance, was declared unconstitutional in a separate 2006 court decision. In that case, Kevin Deegan — who is also a friend and colleague of Deferio — successfully sued the city for $100,000 because police officers had imposed the same “25-foot rule” against him while he was preaching on the Commons. In Deegan’s case, the Second Circuit Court of Appeals upheld the constitutionality of Ithaca’s noise ordinance as written, but declared the application of the “25-foot rule” unconstitutional and forbid the city from using it in the future.
However, court documents reveal that the city never stopped relying upon the “25-foot rule” following that case.
In court documents filed last year, City Attorney Dan Hoffman ’72, law ’93 called the situation a “misunderstanding.”
Hoffman stated in the documents that he had informal conversations about the 2006 court ruling with the then-Chief of Police Lauren Signor and assumed that Signor would subsequently give the appropriate instruction to individual police officers.
But, no such information was passed along to police officers, Hoffman stated in the documents.
In an interview yesterday, Hoffman said that any failure to implement the noise ordinance in the proper way may have been the result of transitions at both the police department and the city attorney’s office.
“If there was a problem, I think there was a communication gap,” he said, “If there was such a gap, we regret it.”
Current Chief of Police Edward Vallely did not return phone messages seeking comment last week.
Ray Schlather law ’76, who represented the City in the lawsuit, said that the city chose to settle after it determined that there was a “miscommunication.”
“The city, to its credit, realized that maybe there should have been changes made [regarding the enforcement of the noise ordinance] and thought that settling was the best course of action,” he said.
The settlement does not include an admission of guilt by the City, Hoffman added yesterday.
Ithaca Mayor Carolyn Peterson issued a memorandum to Chief of Police Edward Vallely in November 2008, after the Deferio had already filed his lawsuit, instructing the police department to stop using the 25-foot rule” for restricting unamplified sound in public spaces.
In court documents, Deferio’s attorney, Nate Kellum, senior counsel for the Alliance Defense Fund, called the memorandum “too little and too late,” since the 2006 Deegan case already instructed the city not to rely on the “25-foot rule.”
Peterson did not return requests to comment but did issue a press release on Friday.
“It was never the City’s intention to interfere with Constitutionally-protected speech, and I would not expect this kind of situation to occur again,” she stated. “Everyone is now completely clear about what is permissible and what is not, and how the noise ordinance is to be enforced in these instances.”
Peterson also called the settlement a “reasonable compromise.”
Kellum said that he was “very pleased” with the outcome of the case.
Kellum, who said he has been involved with many cases pertaining to noise ordinances, called Ithaca’s use of the “25 foot rule” restriction one of the most “egregious” free speech violations he has seen.
He added that it was “inexcusable” that the city did not make any changes following the similar 2006 court case.
“We were shocked that the city would just ignore that decision,” he said.
Under the settlement the City will pay $17,000 to Deferio for nominal damages and attorney’s fees. Kevin Deegan, a fellow preacher who was with Deferio at the time of the incident will receive $1,000 in exchange for not suing the city related to the incident, according to the city’s statement.
The City will end up paying $10,000 of the settlement and its insurance company will pay the remaining $8,000 and the city’s legal fees.
The settlement also requires the city to train its officers about proper enforcement of the noise ordinance and permanently prohibits the city from enforcing the “25 foot rule” for unamplified sound in public areas.
Hoffman also said that the City Attorney’s office is also currently researching possible revisions to the noise ordinance, although the city maintains that the ordinance is constitutional.

Related

In an effort to address the tense student-police relations in Collegetown regarding the City of Ithaca Noise Ordinance, Ithaca Mayor Carolyn Peterson assembled a group to discuss the issue. In attendance were Ed Vallely, the new Ithaca Police Chief, Nancy Schuler (D-4th Ward), Mary Tomlan ’71 (D-3rd Ward), Svante Myrick ’09 (D-4th Ward) and Student Assembly President Ryan Lavin ’09.
According to Peterson, she called the meeting after Lavin ’09,came to a Common Council meeting to address the problems with the noise ordinance and deteriorating student-police relations.
According to the City of Ithaca Noise Ordinance, a noise violation can be issued when a party or social event produces disruptive noise that carries at least 25 feet.

The City of Ithaca’s noise ordinance, which has recently been a source of tension between students living in Collegetown and the Ithaca Police Department, is being challenged for its constitutionality in federal court.
Syracuse resident James Deferio, a traveling Christian evangelist, filed a lawsuit against Ithaca last week, claiming that the city’s noise ordinance violated his First Amendment right to free speech and his Fourteenth Amendment right to due process.
Deferio alleged that while he was preaching his message on the Ithaca Commons in August, an Ithaca Police officer approached him and “explained that Deferio would have to lower his voice or stop speaking, because his voice could be heard 25 feet away,” which violates a City noise ordinance.